Case No: 2000/5173/Y2; 2000/5492/Y2
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 20th December 2000

                                B e f o r e :

                               LORD JUSTICE WALLER

                                  MR JUSTICE DOUGLAS BROWN
                                and
                                     HIS HONOUR JUDGE STEPHENS QC
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	REGINA	Respondent	
	
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Gary Peter REDDY

Simon Bernard HASLAM	
Appellants	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Miss M Moore appeared on behalf of the Appellant Reddy

Mr C M Henley appeared on behalf of the Appellant Haslam

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Judgment
As Approved by the Court

Crown Copyright ©

LORD JUSTICE WALLER:
1.	On 18 August 2000 at the Crown Court at Blackfriars the appellants were each sentenced by His Honour Judge Martineau to 5 years imprisonment for an offence, committed jointly, of assault occasioning actual bodily harm.  It was on 17 July that Reddy had pleaded guilty on re-arraignment to that offence.  On the same occasion he also pleaded to another offence of assault occasioning actual bodily harm in relation to the same victim but committed on his own.  Haslam pleaded not guilty but was found guilty of the offence committed jointly with Reddy.  Haslam was acquitted by the jury of making a threat to kill the same victim.  Reddy was sentenced to 2 years imprisonment for the assault committed by himself alone, that sentence to run concurrently with the 5 year sentence.  
2.	The sentences of both appellants was stated by the judge to be longer than normal sentences, the judge applying the provisions of s. 2(2)(b) of the Criminal Justice Act 1991.  The sentence of 5 years was of course the maximum permitted by the statute.  Both appellants appeal by leave of the single judge. 
3.	Both assaults were committed on the same victim a Mr Yonis Dirie (Dirie).  He lived in a block of flats in West London, as did a Mr Thornton who, it seems, was having a relationship with a girlfriend of Reddy, a Miss McCloud.  Dirie intervened in a dispute between Reddy and Miss McCloud.  On the following day 20 February 2000, Reddy came to Dirie’s flat looking for Mr Thornton.  During the course of the evening, Reddy became abusive to a woman who was in the flat, Miss Broad, the girlfriend of Mr Thornton.  At about 11-0pm they were joined by a man called Marsh.  Reddy continued to be abusive towards Miss Broad and Dirie tried to make Reddy leave at about 3-0am.  Reddy punched Dirie to the face a number of times causing him to fall to the floor and then kneed Dirie in the face, grabbed his hair, pushed his face into a duvet and punched him to the back of the head.  Miss Broad fled the flat while Marsh stood by.  Reddy then kicked Dirie to the face until Dirie pretended to be unconscious.  Reddy appeared to realise that Miss Broad had gone to call the police and he ran after her.  Reddy then returned and as Dirie lay on or near his bed Dirie was struck to the face a number of times by Reddy with his foot.  Again Dirie feigned a loss of consciousness and Reddy eventually left.  Dirie was taken to hospital and was found to have suffered a cut to his nose and some bumps to the back of his head.  He was treated and discharged.  This was the first assault for which Reddy received 2 years imprisonment.  
4.	The joint offence was committed at about 5-30pm later on the same day.  At about that time Reddy and Haslam arrived at Dirie’s flat and pushed their way in when Dirie opened the door.  Reddy slammed Dirie to the floor between the sofa and a glass table.  As Dirie lay face down Reddy sat on him, punched him to the head and kept asking him where Miss McCloud and his child were, saying “Where is he, where’s my baby”.  Meanwhile Haslam cut the telephone wire with a knife.
5.	Reddy grabbed Dirie by the hair and sat him on the sofa.  Haslam said to Dirie, “There’s one question.  Think about it carefully because you don’t want to see Gary really mad.  Where is she?”  When Dirie said that he did not know, Reddy began to hit Dirie’s head against the wall.  When Dirie pleaded with him Reddy punched him to the face.  Dirie referred to Reddy as Gary and according to Dirie at the trial Haslam told him “You cannot call him Gary, he is Mr Gary and I am Mr Simon”, (although in his statement to the police Dirie had said that it was Reddy who told him “You cannot call me Gary, I am Mr Gary and that is Mr Simon”). 
6.	Reddy threatened Dirie and threw him to the floor by his hair.  Reddy and Haslam then kicked Dirie, Reddy to his face, Haslam to his thighs and knees.  Dirie curled himself into a ball to protect himself.  Dirie was made to sit on the sofa and Reddy stretched out so that he was laying with his legs over Dirie’s legs.  When Dirie was unable to tell him where Miss McCloud was, Reddy lifted his leg and kicked him in the face.  At this point Haslam shouted, “Old bill, old bill”, a suggestion that the police were arriving.  Reddy got up and karate kicked Dirie repeatedly, pausing only to elbow him to the face.  At one point Reddy attempted to gouge Dirie’s eyes, and only at this stage did Dirie attempt to defend himself.  Reddy’s response was to headbutt Dirie. Reddy sat next to Dirie and told him to listen to Haslam.  Reddy also threatened Dirie before he and Haslam left.  The incident lasted about twenty minutes. 
7.	A neighbour summoned the emergency services and Dirie was taken to hospital.  The injuries to his nose had been made worse.  His eyes were black and swollen and he had a lump to his forehead.  
8.	Reddy was arrested later that day and Haslam a day later.  When interviewed Reddy said he had gone to the home of Mr Thornton and Miss Broad when Dirie had squared up to him.  There followed a fight in the hallway which lasted about a minute and a half.  Reddy said that Dirie threatened to stab him and Dirie ran into his flat.  Reddy said that he followed and found Dirie with a knife so he had grabbed him and pushed him towards a chair.  Reddy said that Dirie tripped and knocked his head against a wall.  Reddy claimed that his actions had been in self-defence and denied that Haslam had been there. 
9.	When interviewed Haslam said that Reddy, who had been drinking, had said that his baby had been taken.  Reddy wanted to find Miss McCloud and wanted him to go with him.  He had not known what Reddy was going to do.  He accepted being present but denied striking Dirie himself.  
10.	It is right to say that the judge heard the evidence relating to the joint offence in Haslam’s trial, albeit Reddy’s counsel of course could play no part in that trial.  
11.	When it came to sentence the judge had the benefit of pre-sentence reports on both men, each of whom was 21 years of age and were treated as men of good character.  The report on Reddy indicated a lack of remorse and a lack of insight into his behaviour.  The report-writer found it difficult to assess Haslam’s risk of re-offending in the face of his continued denial even after the verdict of the jury.  
12.	From his sentencing remarks it is clear that the judge took a very serious view indeed of the joint offence, which, from the description we have already given is not surprising.  He described it in the following way:- 
“This was a carefully planned and fully premeditated joint attack without warning on a defenceless man, on his own, in his own home, the victim being much smaller physically than either of you, simply because he had apparently taken the side, Reddy, of your ex-girlfriend and might have known of her whereabouts and the whereabouts of her young daughter, in respect of whom you had taken on in the past parental duties and wished to continue to do so, and this attack resulted in, in my view, an orgy of violence. 
It was a quite horrific attack, involving punching to the face, head and body, grabbing the victim by his hair and banging his head repeatedly against the wall, kicking him as he lay on the ground.  Both of you together joined in at this stage, both to the head and to the body, and stamping several times on his head, leaving at least two imprints of the soles of training shoes on his face or head”.
13.	The judge took into account Reddy’s plea of guilty but said in taking it into account:- 
“but I am bound to say it was a plea of guilty tendered in the face of almost overwhelming evidence, and I will give you only modest credit”. 
14.	So far as Haslam was concerned the judge accepted that Haslam played a lesser role but said:- 
“but he gave very active encouragement, he played a full part, but I do accept that about three-quarters of the way through this incident, which I accept and find lasted about 20 minutes, so that was after a good long time of violence being perpetrated to the victim, did try to bring it to an end by pretending that the police had arrived and shouting out “Old bill, old Bill”, so as to cause his co-defendant to stop the violence, but in fact it did not work . . . .”. 
15.	The judge made it clear that he was imposing a longer term of imprisonment than was commensurate with the seriousness of the offence and stated that he was doing so because “that is necessary in my opinion to protect the public from serious harm from both of you”.  
16.	Miss Moore, for the appellant Reddy, submitted that the judge failed to give sufficient credit to Reddy’s plea of guilty; she submitted that the judge sentenced on a factual base that was not accepted by the appellant; she submitted that the judge failed to take into account the unusual circumstances that led up to the offences or any other mitigating factors, and she submitted that it was inappropriate to pass a longer than normal sentence under s. 2(2)(b) of the Criminal Justice Act 1991 since Reddy had no previous convictions, no history of violent behaviour and there was no indication that he posed a future risk to anyone.  
17.	Mr Henley, for the appellant Haslam, submitted that there was no basis for invoking s. 2(2)(b) and submitted that no sufficient account was taken of the fact that Haslam played a lesser role in the assault.  
18.	It was apparent from the submissions of both counsel that they felt that they had been unable to make submissions on mitigation to the judge.  We were troubled about that submission and sought a transcript of the interchange between judge and counsel.  Apart from a passage when Mr Henley commenced his submissions, we think this criticism is unjustified, and furthermore, even in relation to the passage referred to, once Mr Henley made clear that he had hardly been able to say anthing, Mr Henley was allowed to say all that he wanted.  It is fair to say that the judge had clearly formed a view about the nature of the offence before mitigation commenced which had led him to think that he should invoke the powers under section 2(2)(b), from which he was never moved by strenuous submissionss by counsel, but that they were allowed to make those submissions is clear . 
19.	Furthermore, the transcript demonstrates that it is not fair to say that the judge sentenced Reddy on an inaccurate basis.  The judge fully appreciated that Reddy had not been a party to the trial and was prepared to make assumptions in his favour.  What he did however when making those assumptions was also to bear in mind the evidence that he had heard.  
20.	Thus so far as Reddy was concerned it was his case made in interview that the second incident was precipitated by the complainant arming himself with a knife.  There was indeed a knife which belonged to the complainant which was found by the police having been thrown out of the flat by Haslam.  The complainant during the trial said that he had not armed himself with the knife and that the knife had been in the kitchen drawer.  The judge appreciated that one reason why he was not asked to explain how this knife was able to feature in the case was because it was not part of Haslam’s case to cross-examine him about that.  The judge accordingly assumed a knife did feature as a weapon available to Dirie, albeit from the sequence of events described at the trial was not prepared to assume Dirie had threatened Reddy with it.  Miss Moore for Reddy sought to press the judge to go further than that, but did not press for a Newton hearing.  We do not think the judge can be criticised for his approach to this aspect in the light of having heard the evidence at the trial. 
21.	Further, so far as Reddy is concerned, Miss Moore submitted that the judge had failed to take account of the fact that the incident arose out of a set of circumstances which was likely to make the offence one-off.  It was his case that he believed that his girlfriend was being drawn into prostitution by Mr Thornton, the complainant’s friend and neighbour.  It was further his case that his girlfriend’s baby had been taken away and that Dirie was assisting Mr Thornton.  These facts were set out in paragraphs 2, 3 and 4 of the pre-sentence report and Miss Moore made the points very fully as the transcript shows.  The transcript further gives every indication that the judge took the points on board. 
22.	So far as Haslam is concerned, Mr Henley submitted that the judge paid little attention to points that he sought to make in Haslam’s favour.  As indicated, initially the judge did not allow Mr Henley to make much headway, but he certainly allowed everything to be said that could be said.  The main point, so far as Haslam was concerned, was the minor role which he had played in the offence and this the judge clearly appreciated.  As previously indicated the judge was of the view that he should consider invoking his powers under s.2(2)(b) but was not persuaded from this view by effective submissions from Mr Henley. 
23.	We are of the view that there is only one point of any real substance which arises on this appeal which relates to the use of s.2(2)(b).  We think further possibly the judge did not quite recognise as fully as he should the lesser role of Haslam.  Reddy was to be sentenced for two very unpleasant offences and Haslam was to be sentenced for taking part in the worst of those two offences, but, with a minor role in it. 
24.	The judge did not give any explanation or reason as to why he felt that he should invoke s.2(2)(b) of the Criminal Justice Act 1991.  Of course as R v Ian Thomas (1995) 16 Cr.App.R.(S) 616 demonstrates, a longer than normal sentence may be passed for a violent offence on an offender with no previous convictions for violent offences, but only provided there is evidence from which the court can infer that a longer than normal sentence is necessary to protect the public from serious harm from him.  In the judgment in that case Lord Taylor CJ quoted from Crow and Pennington (1995) 16 Cr.App.R.(S) 409 the following passage:- 
“It is not every case of violence or sex offending which would require that section 2(2)(b) should be invoked.  If for example the offence before the court is an isolated one, and there is no reason to fear a substantial risk of further violence or sex offending, then clearly the subsection would not apply.  But the circumstances of the offence or offences before the court, the nature and circumstances of previous offences, medical or other evidence about the offender, statements of intent by the offender himself, or a combination of any of these and other sources, may raise in the judgment of the sentencing judge a substantial risk of the offender committing violent or sexual offences in the future which may cause serious harm.  If that is so, section  2(2)(b) applies.”
25.	The appellants in this case were of good character and we do not consider that there was any evidence or information before the court from which the court could conclude that there was a risk of further violent offences being committed by these men, so as to lead to the invocation of the power under s. 2(2)(b).  
26.	In fixing sentence the position then was that some allowance should have been made for Reddy’s plea of guilty, but on the other hand Reddy was to be sentenced for two offences and had played a very much more serious part than Haslam in the offence for which they were jointly charged.  Haslam not only took a lesser part in the second incident but he also tried to stop it.  
27.	We think that the appropriate sentence in the case of Reddy for the two offences is one of 3 years imprisonment, and to give effect to that view we will reduce the 5 year sentence on count 3 to one of 3 years and allow the sentence of 2 years imprisonment on count 1 to remain, concurrent to the 3 year term.  
28.	So far as Haslam is concerned we think that the appropriate sentence to reflect his part in the offence is one of 2 years imprisonment and we quash the sentence of 5 years and substitute that term accordingly. 
29.	We had previously announced on Thursday 7 December 2000 that that would be the result of this appeal and the above are our reasons for so announcing.